Terms of Trading for Business Customers
1. Contract Formation
1.1. These terms apply to and from the contract between us and you. They supersede any previously issued terms and conditions of purchase or supply.
1.2. No terms or conditions endorsed on, delivered with, or contained in your purchase conditions, order, confirmation of order, specification or other document shall form part of the
contract between us except to the extent that we otherwise agrees in writing.
1.3. Any order for goods, whether or not based on a quotation, shall only become binding on us upon our acceptance of the order in writing.
2. Price
2.1. The price of the Goods shall be the price set out in the order and excludes VAT and delivery (unless otherwise stated) which you shall be additionally liable to pay. Rates of tax and
duties on the goods will be those applying at the time of delivery.
2.2. Our quotations lapse after 30 days (unless otherwise stated) and all quotations are an illustrative estimate only and not binding until we have accepted your order in writing.
2.3. At any time before delivery we may revise the quoted prices and charges in the event of any change in our costs (including as a result of changes made by you or an increase in the cost of labour, materials and other manufacturing costs) and/or prevailing conditions between the date of quotation and date of delivery.
3. Delivery
3.1. This clause 3.1 shall apply if the order specifies that you will collect the goods. We will effect delivery of the goods by informing you that they are available for collection from our premises. You will promptly arrange for collection during our normal business hours and will be responsible for loading the goods at our premises. We may charge you a reasonable storage fee if the goods are not collected within 7 working days of us notifying you that they are ready for collection.
3.2. This clause 3.2 applies if the order specifies that we are responsible for carriage of the goods to a location specified by you. We will arrange carriage of the goods and delivery of the
goods will be affected upon your signature of a delivery or dispatch note which may be in the form of an electronic signature.
3.3. Although we make all reasonable efforts to effect delivery in accordance with prearranged dates, such dates are estimates only and time shall not be of the essence.
3.4. If for any reason you fail to accept delivery of any goods when we attempt delivery at the specified location, or we are unable to deliver the goods because you have not provided adequate
instructions, we may:
3.4.1 treat the goods as having been delivered on that day (for the purposes of risk, inspection and payment); and
3.4.2 charge you for the storage (including the costs of insurance) and redelivery of those goods.
3.5. If you have not collected or accepted delivery of the goods (as the case may be) within 7 working days of being first informed that they are available for collection in accordance with
clause 3.1 or of the first delivery attempt made in accordance with clause 3.2, we shall be entitled to resell or otherwise dispose of the goods. Such right shall not affect your obligation
to pay the purchase price of the goods.
3.6. We may deliver the goods in instalments. Each instalment is treated as a separate contract.
3.7. We may decline to deliver if:
3.7.1. we believe that it would be unsafe, unlawful or unreasonably difficult to do so; or
3.7.2. the premises (or the access to them) are unsuitable for our vehicle; and
3.7.3. charge you the reasonable costs incurred by us as a result of being unable to deliver.
3.8. You must inspect the goods on delivery.
4. Risk
4.1. The goods are at your risk from the time of delivery in accordance with clause
5. Payment terms
5.1. We may invoice you for the goods at any time after the order is accepted and you are to pay us in cash or in cleared funds to the bank account nominated by us in writing on the day of
delivery, unless you have an approved credit account. We reserve the right to request payment prior to delivery.
5.2. If you have an approved credit account, payment is due on the last day of the month following the month in which the goods are delivered, unless otherwise agreed in writing.
5.3. If you fail to pay us in full on the due date we may:
5.3.1. suspend or cancel future deliveries;
5.3.2. cancel any discount offered to you;
5.3.3. charge you interest at the rate set under s.6 of the Late Payment of Commercial Debts (Interest) Act 1998 (the “Act”);
a. calculated (on a daily basis) from the date of our invoice until payment;
b. compounded on the first day of each month; and
c. before and after any judgment (unless a court orders otherwise);
5.3.4 claim fixed sum compensation from you under s.5A of the Act to cover our credit control overhead costs; and
5.3.5 recover (under clause 5.7) the cost of taking legal action to make you pay.
5.4. If you have an approved credit account we may withdraw it or reduce your credit limit or bring forward your due date for payment at our sole discretion. We may take any of these actions at
any time and without notice.
5.5. You do not have the right to set off any money you may claim from us against anything you may owe us.
5.6. While you owe money to us, we have a right to keep any property we may hold of yours until you have paid us in full (a lien).
5.7. You are to indemnify us in full and hold us harmless from all expenses and liabilities we may incur (directly or indirectly and including finance costs and legal costs on a full indemnity
basis) following any breach by you of any of your obligations under these terms.
6. Title
6.1. Title to the goods shall not pass to you until the earlier of: (a) us receiving payment in full and cleared funds for all debts you may owe us; and (b) you reselling the goods, in which
case, title shall pass as specified in clause 6.2. Until title to the goods passes to you:
6.1.1. all goods supplied by us remain our property;
6.1.2. you must store such goods so that they are clearly identifiable as our property;
6.1.3. you must ensure the goods are properly stored, protected and maintained in satisfactory condition;
6.1.4. you must insure such goods (against the risks for which a prudent owner would insure them) and hold the policy on trust for us;
6.1.5. you may use such goods and sell them in the ordinary course of your business, but not if:
a. we revoke that right (by informing you in writing); or b. you become insolvent (as defined in clause 15.4).
6.2. If you sell the goods before title passes, you do so as principal and not as our agent and title to the goods shall pass from us to you immediately before time at which the resale occurs.
6.3. You must inform us (in writing) immediately if you become insolvent (as defined in clause 15.3).
6.4. If your right to use or sell the goods ends, we may require you to deliver up the goods to us and if you fail to do so, you must allow us to remove the goods from your premises or any third
party’s premises where the goods are stored.
6.5. We have your permission to enter any premises where the goods may be stored at any time, to inspect them.
6.6. Notwithstanding our retention of title to the goods, we have the right to take legal proceedings to recover the price of goods supplied should you not pay us by the due date.
6.7. You are not our agent. You have no authority to make any contract on our behalf or in our name.
7. Warranties and Limitation of Liability
7.1. We warrant that at the time of delivery, the goods:
7.1.1. comply with their description; and
7.1.2. are free from material defects (as long as you comply with clause 7.3).
7.2. We give no other warranty (and exclude any warranty, term or condition that would otherwise be implied) as to the quality of the goods or their fitness for any purpose.
7.3. If you believe that we have delivered goods which do not comply with clause, you must:
7.3.1. inform us (in writing), with full details, as soon as possible and in any event within seven days;
7.3.2. not use or process or cease to use or process the goods;
7.3.3. allow us (or our representatives) to investigate and inspect the goods (we may need access to your premises and product samples); and
7.3.4. where the goods are carried by an independent carrier and the claim relates to loss or damage in transit, comply in all respects with the carrier’s conditions for notification of claims
for loss or damage in transit.
7.4. If we find the goods to be defective in material or workmanship (following our investigations) or they do not comply with their description, and you have complied with clause 7.3, we will (at our option) replace the defective goods or refund a proportionate part of the price paid for the defective goods. This is your sole and exclusive remedy in relation to goods which do not comply with the warranty at clause 7.1.
7.5. We cannot accept liability in respect of any defect arising from fair wear and tear, wilful damage, abnormal working conditions, failure to follow our instructions, defects caused as a result
of us following your specification, measurements or instructions or the alteration or repair of the goods without our approval.
7.6. Where we are not the manufacturer of the goods or parts, our liability is limited to any benefit which we may receive under any guarantee given by the supplier of the goods or parts.
7.7. Nothing in these terms shall limit or exclude our liability for:
7.7.1. death or personal injury caused by our negligence, or the negligence of its employees, agents or subcontractors (as applicable);
7.7.2. fraud or fraudulent misrepresentation;
7.7.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
7.7.4. any matter in respect of which it would be unlawful for us to exclude or restrict liability.
7.8. Subject to clause 7.7, we are not liable whether in tort, contract or otherwise for any:
(a) indirect or consequential loss; or for any (b) financial loss, loss of profits or loss of use, loss of business or contracts, loss of data, loss of reputation or goodwill or business
interruption arising from or in connection with the contract or the supply of goods.
7.9. Subject to clause 7.8, our total liability to you:
7.9.1. (from one single cause) for damage to property directly caused by our negligence is limited to five million pounds (or the appropriate amount of insurance we have in place when the contract
is performed); and
7.9.2. for all other losses, is limited to the value of the Order to which the claim relates.
8. Specification
8.1. We reserve the right;
8.1.1. to make any changes in the specifications of our goods that are necessary to ensure they conform to any applicable safety or statutory requirements; and
8.1.2. to make without notice any minor modifications in our specifications we consider necessary or desirable.
8.2. Any dimensions, specifications and general description contained in our technical circulars, catalogues, and advertising material and any samples,drawings produced by us are illustrative only and will not form part of the contract between us.
8.3. All sketches and designs provided by us are private and confidential and all intellectual property rights in any such designs or drawings shall remain our property. You must return
originals and any copies to us on demand.
8.4. To the extent that goods are manufactured in accordance with a specification provided by you, you shall indemnify us against all liabilities, costs, losses, damages, claims, demands and
expenses suffered or incurred by us arising out of or in connection with such specification.
9. Return of goods
9.1. We will accept the return of goods from you only:
9.1.1. by prior arrangement (confirmed in writing);
9.1.2. on payment of an agreed handling charge (unless the goods were defective when delivered); and
9.1.3. where the goods are as fit for sale on their return as they were on delivery.
10. Export terms
10.1. Where the goods are supplied to you for delivery outside the United Kingdom, clause 10 of these terms applies (except to the extent that it is inconsistent with any written agreement
between us). If there is any conflict between this clause 10 and the remainder of these terms, this clause 10 will take precedence.
10.2. Unless otherwise agreed in writing, the goods are supplied ex works (Incoterms 2010) at our place of manufacture.
10.3. You shall be solely responsible for obtaining all import authorisations.
10.4. Where the goods are to be sent by us to you by a route including sea transport we are under no obligation to give a notice under section 32(3) of the Sale of Goods Act 1979.
10.5. You are responsible for arranging testing and inspection of the goods at our premises before shipment (unless otherwise agreed). We are not liable for any defect in the goods which would be apparent on inspection unless a claim is made before shipment. Unless otherwise agreed in writing, we are not liable for any damage during transit.
10.6. We are not liable for death or personal injury arising from the use of goods delivered in the territory of another State (within the meaning of s.26 (3) (b) Unfair Contract Terms Act 1977).
11. Cancellation
11.1. You may not cancel an order unless we agree in writing (and clause 11.2 will then apply).
11.2. If the order is cancelled (for any reason) you are responsible for all reasonable costs incurred by us in fulfilling the order up to the date of cancellation, including
the cost of stock (finished or unfinished) that we may then hold (or to which we have committed to) for the order.
11.3. We may suspend or cancel the order, by written notice if:
11.3.1. you become insolvent (as defined in clause 15.4);
11.3.2. you fail to honour your obligations under these terms.
12. Variations
12.1. Any variation of these terms is binding in honour only unless:
12.1.1. made (or recorded) in writing;
12.1.2. signed on behalf of each party; and
12.1.3. expressly stating an intention to vary these terms.
13. Data protection
13.1. We will process your personal information in accordance with our privacy policy which is available on request or at www.thermosealgroup.com/home/privacy.
14. Force majeure
14.1. If we are unable to perform our obligations to you (or able to perform them only at unreasonable cost) because of circumstances beyond our control, we may cancel or suspend any of our
obligations to you, without liability.
14.2. Examples of those circumstances include acts of God, accident, explosion, war, terrorism, fire, flood, transport delays, strikes and other industrial disputes, non performance by
suppliers and difficulty in obtaining supplies.
15. General
15.1. If you are more than one person or corporate entity, each of you is liable for all of your obligations under these terms (joint and several liability).
15.2. If any of these terms are unenforceable as drafted:
15.2.1. it will not affect the enforceability of any other of these terms; and
15.2.2. if it would be enforceable if amended, it will be treated as so amended.
15.3. A waiver of any right or remedy is only effective if given in writing. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
15.3.1. waive that or any other right or remedy; nor
15.3.2. prevent or restrict the further exercise of that or any other right or remedy.
15.4. We may treat you as insolvent if:
15.4.1. you are unable to pay your debts as they fall due; or
15.4.2. you suspend, or threaten to suspend, or ceases or threatens to cease to carry on all or a substantial part of your business;
15.4.3. you (or any item of your property) becomes the subject of:
a. any formal insolvency procedure (examples of which include receivership, liquidation, administration, voluntary arrangements (including a moratorium));
b. any application or proposal for any formal insolvency procedure; or c. any application, procedure or proposal overseas with similar effect or purpose.
15.5. Any notice by either of us which is to be served under these terms may be served by leaving it at or by delivering it to (by first class post or by fax) the other’s registered office or
principal place of business. All such notices must be signed. Notice shall be deemed to have been received, if delivered personally, when it is left at the address, if sent by first class post, 2
business days (as determined in England) after posting, or if sent by fax, at the time of transmission.
15.6. No one other than a party to the contract shall have any right to enforce its terms.
15.7. The only statements upon which you may rely in making the contract with us are those made in writing by someone who is (or whom you reasonably believe to be) our authorised representative and either:
15.7.1. contained in our estimate (or any covering letter) and not withdrawn before the contract is made; or
15.7.2. which expressly state that you may rely on them when entering into the contract.
15.8. Nothing in these terms is intended to, or shall be deemed to, establish any partnership or joint venture between us, constitute either of us the agent of the other, or authorise either of us
to make or enter into any communications on behalf of the other.
15.9. The contract formed between us in relation to the goods constitutes the entire agreement between us and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
15.10. We both agree that we have no remedy in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out
in these terms. We both agree that we shall have no claim for innocent or negligent misrepresentation based on any statement in these terms or contract.
16. Governing Law and Jurisdiction
16.1. Each contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed
by and construed in accordance with the laws of England and Wales.
16.2. If you are incorporated in the United Kingdom, we both irrevocably agree that the Courts of England and Wales shall have exclusive jurisdiction to settle and dispute or claim that arises out
of or in connection with the contract or its subject matter or formation (including non-contractual disputes or claims).
16.3. If you are incorporated outside of the United Kingdom (or in Scotland, in the event of its independence), any dispute arising out of or in connection with the contract, including any
question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by
reference into this clause and for that purpose:
16.3.1. the number of arbitrators shall be one;
16.3.2. the seat, or legal place, of arbitration shall be in London; and
16.3.3. the language to be used in the arbitral proceedings shall be English.